Texas Schedules One Execution, Tries To Forget Another

Hank Skinner, who resides on death row in Texas, won a case at the U.S. Supreme Court recently.  He got the right to sue, in federal court, for access to DNA evidence he says would exonerate him.  Officials in Gray County, Texas, are in possession of the evidence in question (including vaginal swabs, fingernail scrapings, hairs, and two bloody knives), but have refused to either test it or hand it over for testing.

So, a civil case is now pending in the Northern District of Texas, Amarillo Division.  But that hasn’t stopped Texas from going ahead and setting an execution date anyway.  Skinner is now scheduled to die on November 9.  His lawyers believe the date has been set as “an effort to put pressure on the federal court to act quickly.”

Why not just let the untested evidence be examined?

Perhaps for the same reason the Texas Attorney General recently ruled that the Texas Forensic Science Commission can’t look at any evidence collected before September 2005.  The Commission had been investigating the bogus fire science used to facilitate the execution of Cameron Todd Willingham, which took place in 2004.

Apparently, the best way to avoid errors or mistakes (or worse) in Texas justice is to not look for them.

Is Texas Death Penalty Unconstitutional?

That’s the question that District Judge Kevin Fine in Houston will be deciding in the next couple of weeks.  A hearing in the case of Texas v. Green, starting Monday, Dec. 6, will put the Lone Star State’s capital punishment system on trial, and by all accounts it will be a wide-ranging affair.  Evidence of the sentencing and execution of innocent men, the use of bogus science, and other egregious mistakes and examples of general incompetence will be considered to determine if the death penalty, as currently administered in Texas, is too prone to error to be allowed to continue.  (Green’s challenge to the Texas death penalty is here.)

The constitutionality of the death penalty in principle is NOT under consideration, just the way it is practiced.  The cases of Claude Jones, Cameron Todd Willingham, and Ernest Ray Willis will among the primary examples of how deeply flawed the practice of Texas capital punishment has become.  Well-intentioned reform efforts from, for example, the Texas Forensic Science Commission, have been smothered by political pressure, so maybe the courts can be the avenue for serious investigations into the major malfunctions of the Texas death penalty.

The state’s judicial system, with judges elected all the way up to and including the highest court, has not been known for courageous critical examinations of Texas justice, but evidence of wrongful convictions, wrongful death sentences, and wrongful executions may have – at last – become impossible to ignore or sweep under the rug.

Whatever the outcome of this hearing, it will be a welcome ray of sunlight on the dismally dysfunctional Texas death penalty.

The Distinctive Vocabulary of a New York Lawyer

Back when I lived in Texas there was an TV ad (it may have run nationally) for a certain picante sauce made in San Antonio.  In the ad, a cook for a bunch of cowboys sitting around a campfire makes the mistake of using a picante sauce made in … New York City!  The last line of dialogue is, “Get a rope!”  Ha ha ha.  You used a New York hot sauce, therefore we will kill you.

The new Chairman of the Texas Forensics Science Commission demonstrated much the same mentality when he dismissed attention on the case of Cameron Willingham (executed in 2004 despite a severely flawed arson investigation) as a political tactic cooked up by “New York lawyers.”

Today, it was revealed that he used the same label for a Dallas Morning News reporter who dared to submit to him a list of questions about the Commission’s handling of the Willingham affair.  “The questions have the distinctive vocabulary of a New York lawyer,” Mr. Bradley wrote before refusing to provide any answers.

Mr. Bradley just can’t understand why New York lawyers (and Dallas reporters who sound like them) are so obsessed with the quality of arson investigations that have been used to convict hundreds of Texans, and may have sent one wrongly to his death.

Flawed Science and New York Lawyers

Cameron Todd Willingham was convicted in 1991 and sentenced to die for an arson that killed his three children in Corsicana, Texas. Throughout, he insisted that the fire was an accident, and after his execution, doubts only increased.  A report commissioned by the Innocence Project concluded that the arson investigation in Willingham’s case was seriously flawed, leading many to suspect that the Lone Star State did indeed execute an innocent man.  In 2008 the Texas Forensic Science Commission agreed to look into the case.

On Friday, July 23, the Commission decided that arson investigators had used flawed science, but were not negligent and committed no misconduct.  The investigators had relied, the Commission said, on the best science available at the time.  But a report given to them last year by fire expert Craig Beyler concluded that:

A finding of arson could not be sustained based upon the standard of care expressed by NFPA 921 [the current standard], or the standard of care expressed by fire investigation texts and papers in the period 1980–1992.

In other words, it wasn’t arson by any standard.

The Beyler report was completed over 9 months ago, but Governor Rick Perry stopped the Commission in its tracks by replacing three of its members, including its chairman, two days before a review of the report was to take place. It was Governor Perry who, in 2004, allowed Willingham’s execution to go forward, despite having in hand a report on the “junk science” Texas used to obtain the death sentence.  

Texas state Senator Rodney Ellis suggested to CNN the broader questions the Commission did not ask:

When did the State Fire Marshal start using modern arson science and did the State Fire Marshal commit professional negligence or misconduct when it failed to inform the courts, prosecutors, the Board of Pardons and Parole, and the Governor that flawed arson science had been used to convict hundreds of defendants?

The Forensic Science Commission’s chairman is now a prosecutor named John Bradley, who deftly blamed the whole thing on “New York lawyers”, saying of the Willingham case “I think that’s being used very much as a side issue to politicize, through some New York lawyers, the work of the commission.”

The Texas State Forensics Commission will vote on a final report sometime later this year.  Expectations are low.

Executed for a crime that never occurred?

In 2004, Cameron Todd Willingham was executed in Texas for setting a fire that killed his three children.  He maintained his innocence to the end, and those who looked into his case, including the Chicago Tribune, have concluded that he was in fact wrongfully executed.  His was one of the 200+ executions under Rick Perry, a governor who has remained willfully oblivious to the huge flaws in his state’s death penalty.  

Yet recently, to its credit, the Texas Forensic Science Commission reopened the case.  A nationally known fire expert, Craig Beyler, was hired to assess how Texas authorities investigated the fire.  According to the Tribune, Beyler’s report is not kind to the Texas investigators, and he determined that there was no scientific reason to believe that the fire was arson at all.  If indeed that is the case, Cameron Willingham was executed for a crime that never occurred – an exceptional cruelty for a man who had already lost his three children.

Beyler ripped the fire marshal who investigated the case, saying, according to the Tribune, that the fire marshal had “limited understanding” of fire science, “seems to be wholly without any realistic understanding of fires and how fire injuries are created,” and that his findings “are nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation.”

The Texas Forensic Science Commission will solicit a response from the fire marshal and then publish its final report.  If it reaches the same conclusion that this nationally respected fire expert has, the state of Texas may finally officially acknowledge that it has executed an innocent man.